The Role of Belief in Criminal Law
Belief: An acceptance that a statement is true or that something exists.
In R. v. Iqbal, 2021 ONCA 416, the Court overturned a home invasion conviction based on faulty reasoning by the trial judge. The trial judge rejected the evidence of the accused and based on this rejection concluded that he had fabricated his evidence.
The reasoning chain was as follows: “If I reject your evidence, it means that you have fabricated your evidence. If you have fabricated your evidence, then you must be guilty”. At first blush, there may seem nothing objectionable or illogical about this approach. However, there is a conspicuous problem with this reasoning. Before explaining why, it is useful to provide the law’s position.
If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events.
R. v. Coutts 1998 40 OR (3d) 198 (CA)
For the law, disbelieving an accused person, without corroboration, cannot equate with fabrication. To do so effectively reverses the burden of proof.1 The notion that “I reject your evidence and therefore you are guilty” fails to answer the pivotal question of whether, regardless of the disbelieved evidence, has the Crown nevertheless proven guilt beyond a reasonable doubt. An example may illustrate the point.
A man is seen leaving an apartment complex at approximately 1 am. At approximately the same time, a woman calls from the same apartment complex saying she was raped by an unknown man. The man is arrested; he matches the general description of the assailant, but at trial denies he was the assailant, and gives an explanation for why he was at the apartment complex at the relevant time.
His explanation is disbelieved2. The law requires, and properly so, that the Crown nonetheless prove their case beyond a reasonable doubt. How was he described by the complainant? Did he match the description given by the complainant with enough specificity to warrant a conviction? While he may have matched the description of the assailant generally, what were the differences? Are those differences great enough to raise a reasonable doubt?
The fact that his explanation was disbelieved should not and in law cannot lead to the conclusion of guilt.
Belief
Subjective Belief —————————— Objective Belief
The Truth ———————————————— The Truth
I may believe the world is round because someone tells me it is or I may believe the world is round because I have seen credible pictures of the Earth’s shape; climbed a high peak and observed the Earth’s curvature; studied physics and verified Newton’s laws by conducting experimentation, or recently taken a ride on one of Musk’s, Branson’s or Bezos’s space machines.
While I may believe the world is round “because someone told me so” (and for this example that also happens to be true) it is really for the latter reasons that this belief is compelling. Objective verification. In a criminal trial the objective markers assist in deciding whether to belief someone or something. “He sucker punched me hard in the eye” could be believed independently (without corroborating evidence like another witness or photographs of injury) but with more objective evidence, the easier it becomes to endorse a particular belief.
This then is the crux – a trier of fact, judges or juries, are not all-knowing entities. Time and time and time again innocent people are convicted. A competent trier of fact must appreciate that while they have reached a conclusion, “a belief”, that belief may still be wrong. To disbelieve a person must not result in the fallacious and corollary reasoning that they fabricated evidence.
Disbelieving a person without independent evidence of fabrication should never result in a finding of deliberate concoction and therefore guilt. This is what the law demands. This is what logic suggests. Skepticism is our ally. Perfection is not within the purview of human judges.
1 See also R. v. Rodriguez 2014 ABCA 180 at paras 11-12. “lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” per R. v. JHS 2008 SCC 30 at para 13.
2 Perhaps he was visiting a secret lover or had some other personnel business he was attending to which he did not want to be made known publicly. Perhaps his explanation was a fabrication perhaps it was the truth but nevertheless disbelieved.